W's Immigration Fallacy
January 16, 2004
By Heather Mac Donald
PRESIDENT Bush's proposal to legalize the country's 10 or so million illegal aliens rests on a fallacy: that immigration enforcement has failed to stem the tide of illegal aliens. Therefore, the argument goes, amnesty is the only solution to the illegal-alien crisis.
But immigration enforcement has not failed it has never been tried. Amnesty, however, has been tried, and it was a clear failure that should not be repeated again.
For decades, the country's immigration enforcement has looked like this: a largish number of Border Patrol agents clustered at the border with Mexico, then a vast empty space beyond where illegal immigrants are home free as if a football team had placed its entire defense on the line of scrimmage.
Roughly 2,000 immigration agents have been responsible for all interior enforcement, a massive portfolio which includes checking work sites, eradicating document fraud and alien smuggling, and apprehending criminal aliens. Their numbers are dwarfed by the millions of illegal aliens, the hundreds of thousands of employers who hire them, and the tens of thousands of counterfeiters and smugglers who facilitate their passage.
This dearth of enforcement resources has had the most dire consequences in the workplace. It is the lure of jobs that draws most aliens across the border illegally. The highest priority of immigration enforcement should be to disengage that jobs magnet by penalizing employers who hire illegals. The opposite is the case: A combination of inadequate manpower and weak laws has ensured that illegal aliens and their employers enjoy near immunity from detection and prosecution.
Currently, a mere 124 immigration agents are responsible for enforcing the law against hiring illegal aliens, according to the Associated Press. Only 53 employers were fined in 2002. An employer's chance of punishment for breaking the law, therefore, was a scant one one-hundreth of a percent.
But even were immigration authorities to get adequate resources, it would have little effect on the jobs magnet, because the government's tools for prosecuting illegal employment are so weak. Under public pressure to end the illegal-alien crisis, Congress in 1986 banned the employment of illegal aliens and imposed liability on employers who did so. It was a pyrrhic victory. The 1986 law (the Immigration Reform and Control Act [IRCA]) was emasculated at its inception and has been continuously thwarted in its application.
Here's how: A ban on illegal labor can work only if employers can reliably determine a worker's employment eligibility. Business and ethnic lobbies defeated worker verification in 1986 and every time it has been proposed since then.
What we have instead is a system of playacting. Millions of illegal workers pretend to present valid documents, and thousands of employers pretend to believe them. The employee merely needs to proffer, and the employer merely eyeball, any two documents from a dizzying list of 25 all eminently counterfeitable to establish the employer's compliance with the 1986 law. If the documents are not obvious fakes scrawled on a matchbook with a red crayon, say the employer must accept them.
In fact, if an employer looks too closely at a worker's papers, he may face a lawsuit for racial discrimination. Civil rights and ethnic lobbies made sure that IRCA included a whole new anti-bias bureaucracy: the Office of Special Counsel for Immigration-Related Unfair Employment Practices, which sues employers who demand clear proof of worker eligibility.
Having eyeballed the worker's papers, the employer is now virtually insulated from liability. He can be penalized only if the government can prove that he knowingly hired illegal aliens an almost impossible burden as long as the worker has proffered some reasonable set of fake work papers.
It is this workplace sham that has guaranteed the onslaught of illegals into the country.
In trying to sell his amnesty program, Bush made a vague gesture towards correcting the sham: "Employers must not hire undocumented aliens," he said. "There must be strong workplace enforcement with tough penalties for . . . any employer violating these laws." This is meaningless verbiage. Unless Bush advocates a fraud-proof method of verifying a worker's eligibility such as electronic checks of Social Security numbers his new amnesty and guest-worker programs will have only one effect: The flood of illegal aliens will increase exponentially.
Illegal workers will still be able to proffer counterfeit documents to get hired, and even more will cross the border than before, lured by the reasonable expectation that in a few years, the U.S. will offer another amnesty.
The last large-scale amnesty in 1986 nearly sunk the INS. The barrage of applications for work papers, many fraudulent, overwhelmed the agency. Ethnic advocacy groups sued constantly to widen the eligibility criteria for citizenship, and under political pressure, the INS penalized agents with high denial rates. The results? Several Islamic terrorists got legal papers, and a new era of high-volume illegal immigration began.
Expect a worse outcome this time around. Immigrant advocacy groups are even more powerful, the numbers of illegals even higher than in 1986, and the Department of Homeland Security, now responsible for immigration enforcement, even more overwhelmed by its paperwork obligations.
Rather than granting President Bush his election year amnesty, Congress should give immigration authorities the resources and legal tools to protect the country's borders. It would be a novel experiment.
Heather Mac Donald is a contributing editor to the Manhattan Institute's City Journal, from whose Winter 2004 issue this is adapted.
©2004 New York Post
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